A new front has opened in the simmering legal battle between the Hoboken Board of Education and the Hoboken Dual Language Charter School (HoLa) over HoLa’s state-approved expansion to seventh and eighth grades.

After the New Jersey Department of Education granted HoLa’s expansion last year, the Hoboken school board filed a challenge before the state education commissioner and in appellate court. One of the key issues raised by board members in public comments is that HoLa has a much whiter and more affluent student body than the city’s traditional public schools.

This past December, HoLa found a possible resolution to this aspect of the controversy: they sought state permission to include a low-income preference in their admissions lottery for the 2015-16 school year.

HoLa’s proposed changes are known as a weighted lottery. But in a Jan. 7 letter provided to The Hoboken Reporter, Eric Harrison, the school board’s special counsel, advised against granting HoLa’s request for the 2015-16 cycle, citing state laws he said the charter’s application violates.

HoLa board president Barbara Martinez sharply criticized the school board, arguing that a weighted lottery would have been approved if it had come out in support.

The state did not approve a weighted lottery in time, and the HoLa’s lottery for next school year took place on Jan. 9.

A strongly-worded Jan. 11 editorial in The Star-Ledger called the school board’s opposition to HoLa’s proposal “preposterous” and hypocritical.

HoLa blames board

HoLa, which teaches students in both Spanish and English, has been seeking to install a weighted lottery for at least a year. The school nevertheless maintains that its student population already adequately reflects the diversity of Hoboken’s general school age population, as is required of charter schools by state law.

Reliable data on Hoboken’s school-age demographics does not currently exist, but HoLa’s population roughly matched the racial makeup of the city in the 2010 U.S. Census. That said, the school district as a whole has a higher percentage of minorities than the general population of Hoboken.

_____________ “I personally am glad that HoLa has recognized that the current system does not create acceptable results.”—Ruth Tyroler____________

According to Martinez, HoLa has pursued a number of strategies aimed at increasing its minority and low-income enrollment, including knocking on doors in public and subsidized housing, putting up posters in western Hoboken, and speaking to parents outside of Hoboken preschool programs.

A weighted lottery would make HoLa’s low-income preference explicit by giving children who reside in the public housing, qualify for welfare, or qualify for free or reduced price lunch double the chances in its random lottery.

In November, Martinez told The Hoboken Reporter that HoLa’s Board of Trustees wanted to institute a weighted lottery but could not because of the Hoboken school board’s ongoing lawsuit.

Another issue, it seems, was a lack of legal guidance from the state DOE. But according to Martinez, the agency finally issued guidelines for weighted lottery requests by charter schools in early December. A spokesman for the DOE said that specific guidelines for HoLa had been issued at the school’s request.

On Dec. 10, the HoLa board unanimously authorized Martinez to apply for a weighted lottery for 2015-16. She submitted her application to the state on Dec. 23, requesting a determination by Dec. 31.

After receiving notice of this application on Jan. 5, the school board’s lawyer Eric Harrison advised in a letter to Commissioner Hespe that “the Department of Education should not consider HoLa’s amendment request at this time.”

District school boards are statutorily guaranteed 60 days to comment on proposed changes by local charters. But Martinez says Hoboken could have cancelled out that delay by supporting HoLa’s charter amendment.

She believes the weighted lottery would have been approved but for Hoboken’s opposition.

“If this conflict with the district is really about access to charter schools for low income students,” Martinez said, “we are dumbfounded as to why the Hoboken Board of Ed would stand in the way of a lottery preference that would give low income students greater access to a popular charter school.”

Will HoLa expand next year?

At its first regular meeting of the year this past Tuesday, and in communications before and after, the school board said they were not opposed to the idea of a weighted lottery, only to its introduction on such short notice and prior to the resolution of its legal challenge of HoLa’s expansion.

In November, New Jersey Commissioner of Education David Hespe requested the chance to take another look at the state’s March 2014 approval of two additional grades for HoLa, which was decided just before he took over as acting commissioner.

In a motion before an appellate judge, the state Department of Education said “it would be beneficial for the commissioner to more closely inspect the demographic statistics surrounding the relevant community in this matter and how HoLa’s admissions policy may involve that community.”

Ever since the DOE’s motion was granted, the school board’s lawyer Eric Harrison said he has heard nary a peep from the agency about its how its review process will unfold or when it might be complete.

This includes no response to Harrison’s request that the DOE stay HoLa’s expansion to seventh and eighth grade until it had made its decision (Martinez said the DOE has denied the stay for seventh grade).

Filed too late?

While in this state of legal limbo, Harrison said he could not support any action by HoLa that implicitly or explicitly advances its expansion. Since the HoLa’s proposed weighted lottery would apply to the 2015-16 school year, the first to potentially include a seventh grade, Harrison said writing a letter endorsing a weighted lottery could later be used to argue that he had assented to HoLa’s expansion, crippling the school board’s case.

Harrison also questioned the timing of HoLa’s application for a weighted lottery. The document was sent to the DOE on Dec. 23 and requested a ruling by Dec. 31.

According to the New Jersey Administrative Code, charter amendment requests that increase enrollment in a given school year must be made by Dec. 1 of the previous school year.

The school board is also guaranteed 60 days to comment on proposed changes to district charter schools. According to Harrison, it only learned of HoLa’s application on Jan. 5, the day HoLa’s 2015-16 lottery application period closed.

“This is about rule of law and respect for the rule of law and allowing the legal process to play out fairly for all sides,” said Harrison.

At Tuesday’s school board meeting, Trustee Jennifer Evans called submitting an application two days before Christmas and expecting a determination by New Year’s Eve “optimistic, to say the least.”

Bad press

Members of the Hoboken Board of Education rejected the strong language contained in The Star-Ledger’s editorial on HoLa’s weighted lottery. The essay accused Hoboken public schools, among other things, of “[refusing] to allow what is right.”

“As an educator for the past 44 years…I am astonished at the way in which articles and editorials in the press, particularly The Star-Ledger, misstate and misrepresent the facts,” said Hoboken school superintendent Dr. Richard Brockel in a prepared statement delivered by his deputy. “We are all in the business of educating children, so to suggest anything that would appear as though the Board of Education is not acting in that interest is wrong.”

“I do feel that this editorial is beyond the pale,” said Evans. “I also think that it does a great disservice to our community.”

The board voted 7-1 to authorize its president Ruth Tyroler to send a letter to the editor of The Star-Ledger defending its actions. Trustee Peter Biancamano voted in opposition, and Trustee Leon Gold was absent.

Rhetoric aside, several board members said they were open to the use of a weighted lottery both at HoLa and in the district schools. According to Trustee Irene Sobolov, former Hoboken Public Schools Superintendent Mark Toback spoke in favor of a pursuing a weighted lottery system for all of Hoboken’s schools last year.

As pointed out by HoLa members and in a Hoboken Reporter story last year, de facto segregation appears to exist in the traditional public schools as well. One of its schools in southwest Hoboken has a disproportionate concentration of economically disadvantaged and minority students.

Tyroler and Sobolov expressed interest in a universal enrollment system, in which students can apply for all district public schools including charters in one application. Such a system was implemented in Newark in 2013.

Despite all the vitriol surrounding HoLa’s expansion, Tyroler said she considered HoLa’s support of a weighted lottery a potential point of agreement.

“I personally am glad that HoLa has recognized that the current system does not create acceptable results,” she said.